(PC) Honesto v. Brown et al, No. 1:2017cv00467 - Document 22 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Recommending That This Action Proceed on Plaintiff's Claims for Unconstitutional Conditions of Confinement Against Defendants Schwarzenegger, Hartley, and Adams, and That All Other Claims and Defendants be Dismissed, signed by Magistrate Judge Erica P. Grosjean on 4/17/18. Objections to F&R Due Within Twenty One Days. (Marrujo, C)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 PETER HONESTO, aka Pedro Honesto, 11 12 13 Plaintiff, v. ARNOLD SCHWARZENEGGER, et al., 14 Defendants. 15 Case No. 1:17-cv-00467-LJO-EPG (PC) FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ON PLAINTIFF’S CLAIMS FOR UNCONSTITUTIONAL CONDITIONS OF CONFINEMENT AGAINST DEFENDANTS SCHWARZENEGGER, HARTLEY, AND ADAMS, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED 16 (ECF NO. 15) 17 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS 18 19 I. 20 Peter Honesto, also known as Pedro Honesto (“Plaintiff”), is a state prisoner proceeding 21 pro se and in forma pauperis in this action filed pursuant to 42 U.S.C. § 1983 and the 22 Americans with Disabilities Act. Plaintiff filed the complaint commencing this action on 23 January 12, 2015. (ECF No. 1). The case was filed in the Sacramento Division of the United 24 States District Court for the Eastern District of California. BACKGROUND 25 On March 1, 2017, Magistrate Judge Allison Claire issued findings and 26 recommendations, recommending that Plaintiff’s complaint be dismissed for failure to state a 27 claim, with leave to amend as to certain claims. 28 recommendations were adopted in full. (ECF No. 14). On March 29, 2017, Plaintiff filed his 1 (ECF No. 11). The findings and 1 First Amended Complaint. (ECF No. 15). On April 3, 2017, the case was transferred to the 2 Fresno Division of the United States District Court for the Eastern District of California. (ECF 3 No. 16). Plaintiff’s First Amended Complaint is now before this Court for screening. 4 For the reasons described below, the Court recommends allowing this case to proceed 5 on Plaintiff’s claims for unconstitutional conditions of confinement against defendants 6 Schwarzenegger, Hartley, and Adams. The Court also recommends dismissing all other claims 7 and defendants. Plaintiff may file objections to these findings and recommendations within 8 twenty-one days from the date of service of these findings and recommendations. 9 II. SCREENING REQUIREMENT 10 The Court is required to screen complaints brought by prisoners seeking relief against a 11 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 12 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 13 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 14 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 15 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 11), the Court may 16 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 17 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 18 determines that the action or appeal fails to state a claim upon which relief may be granted.” 19 28 U.S.C. § 1915(e)(2)(B)(ii). 20 A complaint is required to contain “a short and plain statement of the claim showing 21 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 22 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 25 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 26 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 27 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 28 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 2 1 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). Additionally, a 2 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 3 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 4 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 5 pro se complaints should continue to be liberally construed after Iqbal). 6 III. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 7 Plaintiff was incarcerated at Avenal State Prison (“Avenal”) at the time of the incidents 8 alleged in the complaint. Plaintiff brings this action against the State of California, the 9 California Department of Corrections and Rehabilitation (“CDCR”), Governor Arnold 10 Schwarzenegger, James Hartley (the Warden of Avenal), and Warden D.G. Adams (the 11 Warden of Corcoran Substance Abuse Treatment Facility). 12 Plaintiff has a compromised immune system and pulmonary tuberculosis infection. 13 On September 2, 2008, defendant Adams transferred Plaintiff to Avenal, a 14 15 coccidioidomycosis (“Valley Fever”) endemic area. On that same day, defendant Hartley housed Plaintiff at Avenal. Defendant 16 Schwarzenegger authorized Avenal to house Plaintiff in a Valley Fever endemic area. 17 Defendants Hartley and Schwarzenegger failed to protect Plaintiff by failing to screen Plaintiff 18 for Valley Fever, and failing to implement Valley Fever prevention measures. The practice of 19 screening for Valley Fever occurred for several years while Plaintiff was at Avenal. The failure 20 to screen put Plaintiff at an increased risk of harm while participating in prison activities 21 because of Plaintiff’s compromised immune system. 22 Defendants CDCR and State of California also did not have a policy, practice, or 23 procedure of Valley Fever Screenings when they housed Plaintiff at Avenal, a service and 24 benefit given to inmates who are not Americans with disabilities. Providing this screening 25 could have protected Plaintiff from being exposed to an increased risk of serious harm when 26 participating in prison activities. 27 Plaintiff was “inflicted with discrimination” when defendants Schwarzenegger, Hartley, 28 State of California, and CDCR failed to implement a policy, practice, or procedure to 3 1 accommodate Plaintiff, an American with a disability (a compromised immune system), to 2 participate in prison activities without breathing cocci spores. 3 modifications to avoid discrimination on the basis of Plaintiff’s disability. There were also no 4 Defendants knew that Avenal was a Valley Fever endemic area because prison staff 5 were suffering from Valley Fever long before Plaintiff was housed at Avenal. Additionally, 6 Defendants had been warned that people with compromised immune systems and pulmonary 7 conditions are at an increased risk for a Valley Fever infection at Avenal. 8 After September 2, 2008, while Plaintiff was at Avenal, defendants State of California, 9 CDCR, Hartley, and Schwarzenegger ordered prison officials to stop watering the grass 10 because of the drought in California, despite the recommendation from Health Services 11 Investigation and Center for Disease Control. This placed all inmates at risk for a Valley Fever 12 infection that defendants Hartley and Schwarzenegger knew existed (Defendant Hartley knew 13 the risk existed because many inmates were infected, Plaintiff’s building officers were ill from 14 the disease, and one officer died from it). 15 Plaintiff was admitted to Coalinga Medical Center for treatment for a Valley Fever 16 infection on September 20, 2010. Plaintiff suffered from swollen legs, joint and muscle aches, 17 extreme pain, and rashes. Blood tests and x-rays confirmed that Plaintiff was suffering from a 18 Valley Fever infection. 19 Defendants CDCR, State of California, Hartley, and Schwarzenegger denied Plaintiff 20 the benefit of participating in activities when he was stuck in bed due to the Valley Fever 21 infection. Plaintiff was improperly excluded from participating in activities such as going to 22 church, the law library, laundry, canteen, and physical fitness activities. 23 Plaintiff did not know what Valley Fever was or that he had been unconstitutionally 24 inflicted with Valley Fever until February 26, 2014, when medical records showed that Plaintiff 25 was transferred to Chino State Prison because of a Valley Fever infection. 26 Approximately forty pages of exhibits are attached to the complaint. 27 \\\ 28 \\\ 4 1 2 IV. EVALUATION OF PLAINTIFF’S FIRST AMENDED COMPLAINT A. Section 1983 3 The Civil Rights Act under which this action was filed provides: 4 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... 5 6 7 8 9 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 10 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 11 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 12 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 13 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 14 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 15 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 16 under color of state law, and (2) the defendant deprived him of rights secured by the 17 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 18 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 19 “under color of state law”). A person deprives another of a constitutional right, “within the 20 meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or 21 omits to perform an act which he is legally required to do that causes the deprivation of which 22 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 23 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 24 causal connection may be established when an official sets in motion a ‘series of acts by others 25 which the actor knows or reasonably should know would cause others to inflict’ constitutional 26 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 27 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 28 5 1 Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 2 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 3 Additionally, a plaintiff must demonstrate that each named defendant personally 4 participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there 5 must be an actual connection or link between the actions of the defendants and the deprivation 6 alleged to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 7 436 U.S. 658, 691, 695 (1978). 8 Supervisory personnel are generally not liable under section 1983 for the actions of 9 their employees under a theory of respondeat superior and, therefore, when a named defendant 10 holds a supervisory position, the causal link between him and the claimed constitutional 11 violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. Stapley, 607 F.2d 12 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). To state a 13 claim for relief under section 1983 based on a theory of supervisory liability, Plaintiff must 14 allege some facts that would support a claim that the supervisory defendants either: personally 15 participated in the alleged deprivation of constitutional rights; knew of the violations and failed 16 to act to prevent them; or promulgated or “implemented a policy so deficient that the policy 17 ‘itself is a repudiation of constitutional rights' and is ‘the moving force of the constitutional 18 violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations 19 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). For instance, a supervisor may 20 be liable for his “own culpable action or inaction in the training, supervision, or control of his 21 subordinates,” “his acquiescence in the constitutional deprivations of which the complaint is 22 made,” or “conduct that showed a reckless or callous indifference to the rights of 23 others.” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (internal citations, 24 quotation marks, and alterations omitted). 25 B. Eleventh Amendment Immunity 26 Plaintiff brings claims against the State of California and the CDCR. 27 The Eleventh Amendment prohibits federal courts from hearing suits brought against an 28 unconsenting state. Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 6 1 1991) (internal citations omitted); see also Tennessee v. Lane, 541 U.S. 509, 517 (2004); Idaho 2 v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 267-68 (1997); Clark v. California, 123 F.3d 3 1267, 1269 (9th Cir. 1997). 4 The Eleventh Amendment bars suits against state agencies as well as those where the 5 state itself is named as a defendant. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & 6 Eddy, Inc., 506 U.S. 139, 144 (1993); Beentjes v. Placer Cnty. Air Pollution Control Dist., 397 7 F.3d 775, 777 (9th Cir. 2005); Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 (9th 8 Cir. 2003); see also Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam) 9 (stating that Board of Corrections is agency entitled to immunity); Taylor v. List, 880 F.2d 10 1040, 1045 (9th Cir. 1989) (concluding that Nevada Department of Prisons was a state agency 11 entitled to Eleventh Amendment immunity). 12 California is a state, and is thus entitled to Eleventh Amendment immunity from suit. 13 The CDCR is a state agency, and thus is also entitled to immunity from suit in federal court. 14 Therefore, Plaintiff has failed to state a claim against defendants State of California and CDCR. 15 C. Evaluation of Plaintiff’s Claim for Unconstitutional Conditions of 16 Confinement 17 “It is undisputed that the treatment a prisoner receives in prison and the conditions 18 under which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” 19 Helling v. McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 20 (1994). Conditions of confinement may, consistent with the Constitution, be restrictive and 21 harsh. See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 22 1041, 1045 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. 23 Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, 24 provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” 25 Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other 26 grounds by Sandin v. Connor, 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 27 731 (9th Cir. 2000); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 28 642 F.2d 1129, 1132-33 (9th Cir. 1981). 7 1 Two requirements must be met to show an Eighth Amendment violation. Farmer, 511 2 U.S. at 834. “First, the deprivation must be, objectively, sufficiently serious." Id. (internal 3 quotation marks and citation omitted). Second, “prison officials must have a sufficiently 4 culpable state of mind,” which for conditions of confinement claims, “is one of deliberate 5 indifference.” Id. (internal quotation marks and citation omitted). Prison officials act with 6 deliberate indifference when they know of and disregard an excessive risk to inmate health or 7 safety. Id. at 837. The circumstances, nature, and duration of the deprivations are critical in 8 determining whether the conditions complained of are grave enough to form the basis of a 9 viable Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). The 10 exposure to toxic substances can support a claim under section 1983. See Wallis v. Baldwin, 11 70 F.3d 1074, 1076–77 (9th Cir. 1995) (exposure to asbestos). Mere negligence on the part of 12 a prison official is not sufficient to establish liability, but rather, the official's conduct must 13 have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 14 1998).1 15 The Court finds that Plaintiff has sufficiently alleged a claim based on unconstitutional 16 conditions of confinement against defendants Schwarzenegger, Hartley, and Adams. Plaintiff 17 alleges that these defendants knew of Plaintiff’s increased susceptibility to Valley Fever, and 18 yet defendant Adams transferred Plaintiff to a Valley Fever endemic area, and defendants 19 Schwarzenegger and Hartley housed him there. Moreover, defendants Schwarzenegger and 20 Hartley failed to implement procedures to reduce the risk of Valley Fever, and in fact stopped 21 one of the procedures that was designed to reduce the risk (watering). D. Evaluation of Plaintiff’s ADA Claim 22 23 Title II of the Americans with Disabilities Act (“ADA”) provides: 24 Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 25 26 27 28 1 As Judge Claire noted, the law regarding Valley Fever conditions of confinement claims is unsettled. (ECF No. 11, pgs. 13-14). 8 1 42 U.S.C. § 12132. 2 To establish a violation of Title II of the ADA, “a plaintiff must show: (1) he is a 3 ‘qualified individual with a disability'; (2) he was either excluded from participation in or 4 denied the benefits of a public entity's services, programs or activities, or was otherwise 5 discriminated against by the public entity; and (3) such exclusion, denial of benefits, or 6 discrimination was by reason of his disability.” Weinreich v. Los Angeles Cty. Metro. Transp. 7 Auth., 114 F.3d 976, 978 (9th Cir. 1997) (alteration omitted) (quoting § 12132). The Supreme 8 Court has held that “[s]tate prisons fall squarely within the statutory definition of ‘public 9 entity’….” Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 210 (1998) 10 (quoting § 12131(1)(B)). 11 Plaintiff bears the burden of proving he is disabled under the Act. Bates v. United 12 Parcel Serv., 511 F.3d 974, 990 (9th Cir. 2007). The ADA defines a disability as “(A) a 13 physical or mental impairment that substantially limits one or more major life activities of [an] 14 individual; (B) a record of such an impairment; or (C) being regarded as having such an 15 impairment (as described in paragraph (3)).” 42 U.S.C. § 12102(1)(A)-(C)). 16 To determine whether an impairment substantially limits an individual, a court 17 considers “the nature, severity, duration, and impact of the impairment.” Fraser v. Goodale, 18 342 F.3d 1032, 1038 (9th Cir. 2003). Whether a plaintiff “has a disability covered by the ADA 19 is an individualized inquiry.” Bragdon v. Abbott, 524 U.S. 624, 657 (1998). 20 Although 42 U.S.C. § 12132 does not expressly provide for reasonable 21 accommodations, the implementing regulations provide that “[a] public entity shall make 22 reasonable modifications in policies, practices, or procedures when the modifications are 23 necessary to avoid discrimination on the basis of disability, unless the public entity can 24 demonstrate that making the modifications would fundamentally alter the nature of the service, 25 program, or activity.” 28 C.F.R. § 35.130(b)(7)(i). 26 accommodations” or “reasonable modifications” for disabled people under Title II of the ADA 27 arises only when a policy, practice or procedure discriminates on the basis of disability. 28 Weinreich, 114 F.3d at 978-979. A plaintiff bears the burden of establishing “the existence of 9 The duty to provide “reasonable 1 specific reasonable accommodations that [Defendants] failed to provide.” Memmer v. Marin 2 Cty. Courts, 169 F.3d 630, 633 (9th Cir. 1999) 3 “Reasonable accommodation does not require an organization to make fundamental or 4 substantial alterations to its programs.” Mark H. v. Hamamoto, 620 F.3d 1090, 1098 (9th Cir. 5 2010). “Reasonableness ‘depends on the individual circumstances of each case, and requires a 6 fact-specific, individualized analysis of the disabled individual's circumstances and the 7 accommodations that might allow him to [enjoy meaningful access to the program.]’” Id. 8 (alteration in original) (quoting Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002). “An 9 accommodation is reasonable if it is ‘reasonable on its face, i.e., ordinarily or in the run of 10 cases.’” Id. (quoting U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002)). 11 Compensatory damages are not available under Title II of the ADA absent a showing of 12 discriminatory intent. Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998). To 13 show discriminatory intent, a plaintiff must establish deliberate indifference by the public 14 entity. Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001), as amended on denial of 15 reh'g (Oct. 11, 2001). Deliberate indifference requires: (1) “knowledge that a harm to a 16 federally protected right is substantially likely,” and (2) “a failure to act upon that likelihood.” 17 Id. at 1139. The first prong is satisfied when the plaintiff identifies a specific, reasonable, and 18 necessary accommodation that the entity has failed to provide, and notifies the public entity of 19 the need for accommodation “(or where the need for accommodation is obvious, or required by 20 statute or regulation).” Id. The second prong is satisfied by showing that the entity deliberately 21 failed to fulfill its duty to act in response to a request for accommodation. Id. at 1139-40. 22 Punitive damages may not be awarded in suits brought under Title II of the ADA. Barnes v. 23 Gorman, 536 U.S.181, 189 (2002). 24 Plaintiff alleges that is disabled because of his compromised immune system and 25 pulmonary tuberculosis infection. Plaintiff also appears to allege that his Valley Fever 26 infection rose to the level of a qualifying disability. 27 However, Plaintiff does not allege that he requested an accommodation. Moreover, 28 Plaintiff fails to allege that his compromised immune system and pulmonary tuberculosis 10 1 infection substantially limits one or more of his major life activities. Finally, even assuming 2 that Plaintiff’s Valley Fever infection constituted a disability (and it is not at all clear that it 3 does), Plaintiff fails to allege the existence of specific reasonable accommodations that 4 defendants Schwarzenegger, Hartley, or Adams failed to provide. 5 Accordingly, Plaintiff has failed to state a cognizable claim under the ADA. E. Evaluation of Plaintiff’s Equal Protection Claim 6 7 The equal protection clause requires that persons who are similarly situated be treated 8 alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439(1985); Hartmann v. 9 California Dep't of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 10 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To 11 state a claim, Plaintiff must show that Defendants intentionally discriminated against him based 12 on his membership in a protected class, Hartmann, 707 F.3d at 1123 Furnace, 705 F.3d at 13 1030, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Thornton v. City of St. Helens, 14 425 F.3d 1158, 1166-67 (9th Cir. 2005), Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th 15 Cir. 2001), or that similarly situated individuals were intentionally treated differently without a 16 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 17 U.S. 591, 601-02 (2008), Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), Lazy Y 18 Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008), North Pacifica LLC v. City of 19 Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). “[T]he disabled do not constitute a suspect class” for equal protection purposes. Does 20 21 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996). 22 Plaintiff alleges that he, an inmate with a disability, was not screened for Valley Fever, 23 while inmates without disabilities were screened. However, Plaintiff’s conclusory allegation is 24 not enough to state a claim. Plaintiff fails to allege any facts from which an inference could be 25 drawn that defendants Schwarzenegger, Hartley, or Adams did not screen Plaintiff for Valley 26 Fever because of Plaintiff’s alleged disability. Accordingly, Plaintiff has failed to state a 27 cognizable equal protection claim. 28 \\\ 11 1 V. 2 The Court has screened the First Amended Complaint, and finds that it states cognizable 3 claims for unconstitutional conditions of confinement against defendants Schwarzenegger, 4 Hartley, and Adams. The Court also finds that Plaintiff has failed to state any other cognizable 5 claims. 6 7 CONCLUSION AND RECOMMENDATIONS The Court does not recommend granting further leave to amend. Plaintiff filed his First Amended Complaint after being provided with ample legal guidance by Judge Claire. 8 Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that: 9 1. This case proceed on Plaintiff’s claims for unconstitutional conditions of 10 confinement against defendants Schwarzenegger, Hartley, and Adams; and 11 2. All other claims and defendants be dismissed. 12 These findings and recommendations are submitted to the United States district judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one 14 (21) days after being served with these findings and recommendations, Plaintiff may file 15 written objections with the Court. Such a document should be captioned “Objections to 16 Magistrate Judge’s Findings and Recommendations.” 17 Failure to file objections within the specified time may result in the waiver of rights on 18 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 19 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 22 IT IS SO ORDERED. Dated: April 17, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 12